41 U.S.C. § 2304 — Conflict of interest standards for consult-

Page 74 TITLE 41—PUBLIC CONTRACTS § 2304 contracting officers to take into consideration pro- fessional standards and procedures to prevent organi- zational conflicts of interest to which an offeror or contractor is subject. ‘‘(b) EXECUTIVE AGENCY DEFINED.—In this section, the term ‘executive agency’ has the meaning given the term in section 133 of title 41, United States Code.’’ DEADLINE FOR ISSUANCE OF STANDARD POLICY Pub. L. 111–350, § 6(f)(1), Jan. 4, 2011, 124 Stat. 3854, provided that: ‘‘The requirement in section 2303(b)(1) of title 41, United States Code, to issue a policy shall be done not later than 270 days after October 14, 2008.’’ REVIEW OF FEDERAL ACQUISITION REGULATION RELATING TO CONFLICTS OF INTEREST Pub. L. 110–417, [div. A], title VIII, § 841(b), Oct. 14, 2008, 122 Stat. 4539, provided that: ‘‘(1) REVIEW.—Not later than 12 months after the date of the enactment of this Act [Oct. 14, 2008], the Admin- istrator for Federal Procurement Policy, in consulta- tion with the Director of the Office of Government Eth- ics, shall review the Federal Acquisition Regulation to— ‘‘(A) identify contracting methods, types and serv- ices that raise heightened concerns for potential per- sonal and organizational conflicts of interest; and ‘‘(B) determine whether revisions to the Federal Acquisition Regulation are necessary to— ‘‘(i) address personal conflicts of interest by con- tractor employees with respect to functions other than those described in subsection (a) [now 41 U.S.C. 2303(b)]; or ‘‘(ii) achieve sufficiently rigorous, comprehensive, and uniform government-wide policies to prevent and mitigate organizational conflicts of interest in Federal contracting. ‘‘(2) REGULATORY REVISIONS.—If the Administrator de- termines pursuant to the review under paragraph (1)(B) that revisions to the Federal Acquisition Regulation are necessary, the Administrator shall work with the Federal Acquisition Regulatory Council to prescribe appropriate revisions to the regulations, including the development of appropriate contract clauses. ‘‘(3) REPORT.—Not later than March 1, 2010, the Ad- ministrator shall submit to the Committees on Armed Services of the Senate and House of Representatives, the Committee on Homeland Security and Govern- mental Affairs in the Senate, and the Committee on Oversight and Government Reform [now Committee on Oversight and Accountability] of the House of Rep- resentatives a report setting forth such findings and de- terminations under subparagraphs (A) and (B) of para- graph (1), together with an assessment of any revisions to the Federal Acquisition Regulation that may be nec- essary.’’ § 2304. Conflict of interest standards for consult- ants (a) CONTENT OF REGULATIONS.—The Adminis- trator shall prescribe under this division Gov- ernment-wide regulations that set forth— (1) conflict of interest standards for persons who provide consulting services described in subsection (b); and (2) procedures, including registration, cer- tification, and enforcement requirements as may be appropriate, to promote compliance with the standards. (b) SERVICES SUBJECT TO REGULATIONS.—Regu- lations required by subsection (a) apply to— (1) advisory and assistance services provided to the Federal Government to the extent nec- essary to identify and evaluate the potential for conflicts of interest that could be preju- dicial to the interests of the United States; (2) services related to support of the prepara- tion or submission of bids and proposals for Federal contracts to the extent that inclusion of the services in the regulations is necessary to identify and evaluate the potential for con- flicts of interest that could be prejudicial to the interests of the United States; and (3) other services related to Federal con- tracts as specified in the regulations pre- scribed under subsection (a) to the extent nec- essary to identify and evaluate the potential for conflicts of interest that could be preju- dicial to the interests of the United States. (c) INTELLIGENCE ACTIVITIES EXEMPTION.— (1) ACTIVITIES THAT MAY BE EXEMPT.—Intel- ligence activities as defined in section 3.4(e) of Executive Order No. 12333 or a comparable definitional section in any successor order may be exempt from the regulations required by subsection (a). (2) REPORT.—The Director of National Intel- ligence shall report to the Intelligence and Ap- propriations Committees of Congress each January 1, delineating the activities and orga- nizations that have been exempted under para- graph (1). (d) PRESIDENTIAL DETERMINATION.—Before the regulations required by subsection (a) are pre- scribed, the President shall determine if pre- scribing the regulations will have a significantly adverse effect on the accomplishment of the mission of the Defense Department or another Federal agency. If the President determines that the regulations will have such an adverse effect, the President shall so report to the appropriate committees of the Senate and the House of Rep- resentatives, stating in full the reasons for the determination. If such a report is submitted, the requirement for the regulations shall be null and void. (Pub. L. 111–350, § 3, Jan. 4, 2011, 124 Stat. 3736.) HISTORICAL AND REVISION NOTES Revised Section Source (U.S. Code) Source (Statutes at Large) 2304(a) ........ 41:405b(a). Pub. L. 100–463, title VIII, § 8141, Oct. 1, 1988, 102 Stat. 2270–47. 2304(b) ........ 41:405b(b). 2304(c) ........ 41:405b(d). 2304(d) ........ 41:405b(e). In this section, the text of 41:405b(c) is omitted as ob- solete. In subsection (a), before paragraph (1), the words ‘‘The Administrator shall prescribe under this division Government-wide regulations’’ are substituted for ‘‘Not later than 90 days after October 1, 1988, the Adminis- trator of the Office of Federal Procurement Policy shall issue a policy, and not later than 180 days there- after Government-wide regulations shall be issued under the Office of Federal Procurement Policy Act (41 U.S.C. 401 et seq.)’’ to eliminate obsolete words. In subsection (b), before paragraph (1), the words ‘‘the following types of consulting services’’ are omitted as unnecessary. In subsection (c)(2), the words ‘‘Director of National Intelligence’’ are substituted for ‘‘Director of Central Intelligence’’ because of section 1081(a) of the Intel- ligence Reform and Terrorism Prevention Act of 2004 (Public Law 108–458, 50 U.S.C. 401 note). The words ‘‘each January 1’’ are substituted for ‘‘no later than January 1, 1990, and annually thereafter to eliminate obsolete and unnecessary words. The words ‘‘exempted Page 75 TITLE 41—PUBLIC CONTRACTS § 2308 under paragraph (1)’’ are substituted for ‘‘exempted from the regulations required by subsection (a) of this section in accordance with the provisions of this sub- section’’ to eliminate unnecessary words. Editorial Notes REFERENCES IN TEXT Executive Order 12333, referred to in subsec. (c)(1), is set out as a note under section 3001 of Title 50, War and National Defense. Statutory Notes and Related Subsidiaries CLARIFICATION OF WAIVER AUTHORITY FOR ORGANIZA- TIONAL AND CONSULTANT CONFLICTS OF INTEREST Pub. L. 118–159, div. A, title VIII, § 881, Dec. 23, 2024, 138 Stat. 2017, provided that: ‘‘Section 9.503 of the Fed- eral Acquisition Regulation shall be revised to require that— ‘‘(1) a request for a waiver under such section in- clude a written justification for such waiver; and ‘‘(2) the head of a Federal agency may not delegate such waiver authority below the level of the deputy head of such agency.’’ § 2305. Authority of Director of Office of Manage- ment and Budget not affected This division does not limit the authorities and responsibilities of the Director of the Office of Management and Budget in effect on Decem- ber 1, 1983. (Pub. L. 111–350, § 3, Jan. 4, 2011, 124 Stat. 3737.) HISTORICAL AND REVISION NOTES Revised Section Source (U.S. Code) Source (Statutes at Large) 2305 ............ 41:405(h)(2). Pub. L. 93–400, § 6(h)(2), Aug. 30, 1974, 88 Stat. 797; Pub. L. 96–83, § 4, Oct. 10, 1979, 93 Stat. 649; Pub. L. 98–191, § 5, Dec. 1, 1983, 97 Stat. 1328. The words ‘‘in effect on December 1, 1983’’ are sub- stituted for ‘‘current’’ for clarity. § 2306. Openness of meetings The Administrator by regulation shall require that— (1) formal meetings of the Office of Federal Procurement Policy, as designated by the Ad- ministrator, for developing procurement poli- cies and regulations be open to the public; and (2) public notice of each meeting be given not less than 10 days prior to the meeting. (Pub. L. 111–350, § 3, Jan. 4, 2011, 124 Stat. 3737.) HISTORICAL AND REVISION NOTES Revised Section Source (U.S. Code) Source (Statutes at Large) 2306 ............ 41:412(b). Pub. L. 93–400, § 14(b), Aug. 30, 1974, 88 Stat. 800; Pub. L. 96–83, § 9, Oct. 10, 1979, 93 Stat. 652. § 2307. Comptroller General’s access to informa- tion The Administrator and personnel in the Office of Federal Procurement Policy shall furnish in- formation the Comptroller General may require to discharge the responsibilities of the Comp- troller General. For this purpose, the Comp- troller General or representatives of the Comp- troller General shall have access to all books, documents, papers, and records of the Office of Federal Procurement Policy. (Pub. L. 111–350, § 3, Jan. 4, 2011, 124 Stat. 3737.) HISTORICAL AND REVISION NOTES Revised Section Source (U.S. Code) Source (Statutes at Large) 2307 ............ 41:412(a). Pub. L. 93–400, § 14(a), Aug. 30, 1974, 88 Stat. 800. SENATE REVISION AMENDMENT In text, ‘‘representatives of the Comptroller General’’ substituted for ‘‘his representatives’’ by S. Amdt. 4726 (111th Cong.). See 156 Cong. Rec. 18682 (2010). § 2308. Modular contracting for information tech- nology (a) USE.—To the maximum extent practicable, the head of an executive agency should use mod- ular contracting for an acquisition of a major system of information technology. (b) MODULAR CONTRACTING DESCRIBED.—Under modular contracting, an executive agency’s need for a system is satisfied in successive acquisi- tions of interoperable increments. Each incre- ment complies with common or commercially accepted standards applicable to information technology so that the increments are compat- ible with other increments of information tech- nology comprising the system. (c) PROVISIONS IN FEDERAL ACQUISITION REGU- LATION.—The Federal Acquisition Regulation shall provide that— (1) under the modular contracting process, an acquisition of a major system of informa- tion technology may be divided into several smaller acquisition increments that— (A) are easier to manage individually than would be one comprehensive acquisition; (B) address complex information tech- nology objectives incrementally in order to enhance the likelihood of achieving work- able solutions for attaining those objectives; (C) provide for delivery, implementation, and testing of workable systems or solutions in discrete increments, each of which com- prises a system or solution that is not de- pendent on a subsequent increment in order to perform its principal functions; and (D) provide an opportunity for subsequent increments of the acquisition to take advan- tage of any evolution in technology or needs that occurs during conduct of the earlier in- crements; (2) to the maximum extent practicable, a contract for an increment of an information technology acquisition should be awarded within 180 days after the solicitation is issued and, if the contract for that increment cannot be awarded within that period, the increment should be considered for cancellation; and (3) the information technology provided for in a contract for acquisition of information technology should be delivered within 18 months after the solicitation resulting in award of the contract was issued. (Pub. L. 111–350, § 3, Jan. 4, 2011, 124 Stat. 3737.)